Ham produced by Smithfield, which is part of Murphy-Brown (Photo: Amazon)

This story is part of a larger series on the national pork industry that NC Policy Watch is co-publishing with Environmental Health News[2]. The series, Peak Pig,[3] begins at EHN today.

On Wednesday, Policy Watch will examine the history of nuisance suits, plus swine waste-to energy technologies, and more.

The 26 nuisance lawsuits against hog giant Murphy-Brown can proceed to trial, a federal district court judge ruled last week[4]. While the decision marks a brief victory for the residents living near the industrialized hog farms, the litigation might be the last of its kind in North Carolina.

In his 33-page ruling, Senior US District Court Judge Earl Britt undercut some of Murphy-Brown’s arguments, while allowing others: Britt did seal several pieces of evidence because it purportedly contained confidential business information. And he agreed to hear a motion in December that would separate the cases.

That strategy could make the lawsuits more expensive for the plaintiffs. And should one plaintiff lose, legal precedents might arise in court that could then jeopardize future rulings.

Mark Anderson, attorney with McGuire Woods, which is representing the pork producer, did not return an email seeking comment.

But Britt did set a tone that partially favored the plaintiffs. He discounted Murphy-Brown’s contention that their farms are immune from nuisance litigation under the state’s Right to Farm law. That law essentially shields industrialized livestock operations from nuisance suits if the plaintiffs have “moved to the nuisance”; in other words, precedence generally goes to whoever was there first, the residents or the farm.

In this case, many of the plaintiffs are living on land that has been in their families for generations.

“Their land use had been in existence well before the operations of the subject farms began,” Britt wrote. “The fact that some plaintiffs may have used their land for agricultural purposes in addition to a residence or that other agricultural uses have pre-existed in the locality does not alter the court’s analysis.”

These lawsuits against Murphy-Brown — the nation’s largest pork producer — prompted the creation of House Bill 467. Now law, the controversial measure prohibits plaintiffs who win nuisance suits from being awarded compensatory damages, including money to pay for medical treatment related to a farm’s odor, flies and noise.

Instead, winning plaintiffs can recover only damages that cover the devaluation of their property. Given that their property values could already be decreased because of the proximity to an industrialized farm, that amount of money would likely be negligible in comparison. Plaintiffs can still be awarded punitive damages, but those claims are much harder to prove.

The justification, lawmakers said, was that the number of lawsuits would supposedly financially hobble the billion-dollar agribusiness.

“Industry can’t sustain this,” said Sen. Brent Jackson during a debate on the bill. “Without livestock there would be tumbleweed rolling down city streets.”

Considering the political and financial muscle of Murphy-Brown, that scenario is unlikely.

At one point this year, it was uncertain if the 26 lawsuits could even go on. Under the original version of HB 467, the litigation would have been tossed. That’s because the bill language would have applied the law retroactively, to cases that had already been filed. The suits were filed in 2015.

The retroactive provision threatened the bill’s viability, so it was struck. Nonetheless, earlier this fall Murphy-Brown tried to halt the lawsuits by arguing that the state legislature intended to include the retroactive language, but didn’t. Britt’s ruling doesn’t address that motion specifically, but by allowing the cases to go to trial, he appears to discount it.

Britt’s decision also undercuts some state lawmakers’ arguments that the courts needed clarity from the legislature. “North Carolina law is not clear on these kinds of nuisance issues,” said State Rep. Jimmy Dixon during a committee debate.

“Judge Britt could deduce from existing precedent” the legal remedies available for the plaintiffs,” said Will Hendrick, staff attorney for the NC Pure Farms Pure Waters Campaign, this week. “He didn’t need guidance.”

Judge Britt will hold a hearing on several motions on Dec. 4, at the federal courthouse in Raleigh.